False Claims of "Collective Punishment" in NGO Campaigns on Gaza

February 28, 2008

NGO Monitor’s January 2008 report: "Analyzing the NGO Campaign on Gaza – Beyond the Rhetoric," focused on the role of NGOs in promoting false claims of "collective punishment" and "war crimes" regarding Israel’s responses to the Hamas attacks from Gaza. However, the NGO manipulation of the language of international law in this and other cases, is being increasingly recognized and critiqued.

Following Erik Schechter’s January 2008 op-ed in The Jerusalem Post, which challenged the double-standards of NGOs such as Amnesty International, Human Rights Watch and Gisha, Avi Bell (Bar-Ilan University, Visiting Professor at Fordham University Law School), Bret Stephens of the Wall Street Journal, and Michael Kraus, Professor of Law, George Mason University have also analyzed and discredited these NGO claims.

"Article 23 of the Fourth Geneva Convention … only requires Israel to permit passage of food, clothing, and medicines intended for children under fifteen, expectant mothers, and maternity cases. Moreover, Israel would be under no obligation to provide anything itself, just not to interfere with such consignments sent by others. Article 70 of the First Protocol Additional to the Geneva Conventions of 1977 creates a slightly broader duty …, but it does not list fuel and electricity as items for which passage must be permitted.

Dependence on foreign supply – whether it be Gazan dependence on Israeli electricity or European dependence on Arab oil – does not create a legal duty to continue the supply. …

There is no precedent that creates legal duties on the basis of a former military administration. … Furthermore, control of airspace does not create a legal duty to supply goods either. "

Stephens’ February 26, 2008 article, "The Sderot Calculus" explains the farcical logic of NGO calls for a "proportionate" response to rocket attacks:

"Conditions in Gaza, in so far as they are shaped by Israel, are a function of conditions in Sderot. No Palestinian Kassams (or other forms of terrorism), no Israeli ‘siege.’….

The more vexing question, both morally and strategically, is what Israel ought to do about Gaza. The standard answer is that Israel’s response to the Kassams ought to be "proportionate." What does that mean? Does the "proportion" apply to the intention of those firing the Kassams — to wit, indiscriminate terror against civilian populations? In that case, a "proportionate" Israeli response would involve, perhaps, firing 2,500 artillery shells at random against civilian targets in Gaza. Or should proportion apply to the effects of the Kassams — an exquisitely calibrated, eye-for-eye operation involving the killing of a dozen Palestinians and the deliberate maiming or traumatizing of several hundred more?

Surely this isn’t what advocates of proportion have in mind. What they really mean is that Israel ought to respond with moderation. But the criteria for moderation are subjective. Should Israel pick off Hamas leaders who are ordering the rocket attacks? The European Parliament last week passed a resolution denouncing the practice of targeted assassinations. Should Israel adopt purely economic measures to punish Hamas for the Kassams? The same resolution denounced what it called Israel’s "collective punishment" of Palestinians. Should Israel seek to dismantle the Kassams through limited military incursions? This, too, has the unpardonable effect of resulting in too many Palestinian casualties, which are said to be "disproportionate" to the number of Israelis injured by the Kassams."

Michael Kraus’s "Collective Punishment and Newspeak" article appeared in the "American Thinker" on February 24, 2008. He responds to the charge by "Israeli and Palestinian civil rights groups" that Israel’s reduction of fuel and electricity exports to Gaza constitute collective punishment.

"But this claim is nonsense, and makes a mockery of international law. This is so for the following reasons:

It conflates failure to aid with active criminal harm. ……

The bar on collective punishment forbids the imposition of criminal or military penalties (imprisonment, death, etc) on some people for crimes committed by other individuals. But ceasing trade with a country is not inflicting a criminal or military penalty against that country’s citizens, not least because those citizens have no entitlement to objects of trade that they have not yet purchased. If Canada tolerated and celebrated car-bombings of Buffalo from Fort Erie, Ontario, the United States could cease exporting cars to Canada – such cessation of trade was never contemplated as collective punishment, because it is not a military or a criminal sanction. The United States quite legally froze trade with Iran after that country committed an act of War against the USA following the 1979 Revolution.

Even prevention of access of goods coming from third parties is not collective punishment: the U.S. blockade of Cuba after they installed nuclear missiles directed at the United States was not a collective punishment of the Cuban people, it was a non-violent act of war in self-defense. In any case, Israel has made no effort to prevent Gaza from receiving electricity from Egypt; it has merely declined to furnish this assistance itself. Article 49 of the Geneva Conventions clearly does not outlaw such acts. The current misuse of the term in the Security Council would have exactly that effect.

The electricity withheld from sale was a military tool. Article 52 of the 1977 Amendment to the Geneva Convention explicitly countenances attacks on legitimate military objectives, which are "those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage." As Israel has pointed out, its (minor) reduction in electricity sold means that "Hamas will have to decide whether to provide electricity to hospitals or weapons lathes." Diesel will be allowed in to fuel ambulances, sewage pumps, generators and garbage trucks, but gasoline will be restricted. According to estimates, Israel still exports approximately US$500 million worth of goods and services into the Gaza Strip each year.

The claim is Newspeak. The charge of collective punishment is appropriately leveled against one side in the Israeli-Palestinian dispute; but that side is not Israel. As Joseph Klein recently pointed out in a Front Page Magazine article, the innocent Israeli women and children slaughtered while going about their daily lives in homes, schools, on buses and at shopping malls are not warriors against the Palestinian people. They are in large number the victims of the Hamas’ measures of collective punishment against Jews — intimidation and terrorism, which violate their most basic of human rights – life itself. Indeed, Israel has targeted the perpetrators of these atrocities individually, entirely in conformity with its international obligations. When Israel kills such targets, precisely the people who have individually committed acts of war against Israel, it highlights the difference between legal force and collective punishment."